Citation Nr: 0918738
Decision Date: 05/19/09 Archive Date: 05/26/09
DOCKET NO. 05-00 780 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for posttraumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
J. Fussell, Counsel
INTRODUCTION
The Veteran, who is the appellant, served on active duty from
April 1979 to April 1983.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a February 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco Texas.
An October 2006 Board decision denied service connection for
an acquired psychiatric disorder, to include a bipolar
disorder, but found that new and material evidence had been
presented to reopen a claim for service connection for PTSD.
After reopening that claim, it was remanded, in part, to
comply with 38 C.F.R. §§ 3.304(f)(3) by giving the Veteran
notice that evidence from other than her service records,
including evidence of behavior changes could constitute
credible supporting stressor evidence.
FINDINGS OF FACT
1. The Veteran had active military service but did not serve
during a period of war, was not stationed in a combat zone,
did not engage in combat, and PTSD was not diagnosed during
service.
2. There is credible corroborating evidence of behavior
changes in the Veteran consistent with those reasonable
expected following her having experienced an inservice sexual
assault.
CONCLUSION OF LAW
PTSD was incurred in active service. 38 U.S.C.A. § 1131 (West
2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.304 (2008).
Veterans Claims Assistance Act (VCAA)
The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and
implemented in part at 38 C.F.R § 3.159, amended VA's duties
to notify and to assist a claimant in developing information
and evidence necessary to substantiate a claim.
The Veteran's service connection claim for PTSD has been
considered with respect to VA's duty to notify and assist.
Given the favorable outcome noted below, no conceivable
prejudice to the Veteran could result from this adjudication.
See Bernard v. Brown, 4 Vet. App. 384, 393 (1993).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The Veteran claims that she suffers from PTSD as a result of
a personal assault during service, specifically, that she was
raped.
The Veteran's service personnel records reflect an April 1979
medical history questionnaire in conjunction with service
entrance noted that she had used marijuana two months ago.
In January 1980 it was noted that there was no history or
indication of present drug use. In June 1982 she was
commended for her performance in May 1982 at the U.S. Army
Noncommissioned Officers Academy and the Drill Sergeant
School. She was given an Article 15 in March 1983 for
failing to report for duty.
Records from Scott and White Hospital in 1986 and 1987 show
that laboratory studies in 1987 yielded findings of alcohol
and drug abuse. In August 1987 it was noted that the Veteran
had a cocaine habit. She had no hallucinations. She denied
prior psychiatric difficulties but had been taking drugs
since February. The impression was cocaine and alcohol
abuse.
Records in 1993 from the Thomason Hospital show that the
Veteran had been hospitalized for suicide attempts in January
and October, and had abused cocaine for three years. The
diagnoses were cocaine dependence and a borderline
personality disorder. She admitted having auditory
hallucinations urging her to kill herself. She had a history
of mood swings since being 15 to 16 years old with periods of
joy, little sleep, and a feeling she could do anything;
followed by depression and withdrawal.
A discharge summary of the Veteran's VA hospitalization in
December 1996 reflects that she reported having been
diagnosed in the past with schizophrenia, a bipolar disorder,
and PTSD. She had also been treated for substance abuse.
She had been sexually abused by her grandfather and had
nightmares and auditory hallucinations of only those events.
She also reported having been diagnosed with a
schizophreniform disorder in Germany during service. The
diagnoses were a depressive disorder, not otherwise
specified; a borderline personality disorder; and cocaine
abuse but cocaine dependence was to be ruled out.
Treatment notes during that hospitalization show that the
Veteran was hospitalized after complaining of hearing voices,
having feelings of rage, having attempted suicide twice, and
abusing alcohol and crack cocaine. She had set a fire in her
sister's apartment, for which she was on probation. It was
reported that she had a long history of psychiatric problems
and had been seen by a psychiatrist in Germany while on
active duty a few years ago. She reported having been
diagnosed with schizophrenia and a bipolar disorder. She
reported having been sexually abused by her grandfather and
had nightmares about these sexual events. She had a long
history of cocaine abuse. The diagnoses were PTSD,
substance-induced depressive moods, borderline personality
traits, and both a bipolar disorder and a personality
disorder were to be ruled out. Her close friend indicated
that the Veteran might not be telling the truth. It was
noted that apparently the Veteran had admitted herself to
hospitals many times when in trouble. Another notation
indicates that she had abused cocaine, off and on, for the
past nine years. Later, she reported having heard voices
since she was a child. She reported having had the same
symptoms during her military service. A staff physician
considered the Veteran's auditory hallucinations as being
more consistent with PTSD than with a psychosis, not
otherwise specified. She was given medication for a
personality disorder. Another clinical notation reflects
that she had twice been treated for cocaine abuse, in 1984
and again in 1996.
After the Veteran filed a claim for service connection for
PTSD in June 1998, she reported in July 1998 that she had
been raped in October 1980 during service by three men and
although she complained about it, nothing was ever done.
The Veteran underwent VA hospitalization in March 1998, after
having been released from prison 2 1/2 months ago, for anxiety
attacks and suicidal thoughts. Treatment notes reflect that
she again reported having been sexually abused by her
grandfather and reported that her nightmares, amnesic spells,
auditory hallucinations related to this. The discharge
diagnoses were PTSD, bipolar disorder, and a borderline
personality disorder. She was discharged to a VA Domiciliary
and while there, in May 1998, she reported having become an
alcoholic during service and had began using cocaine in 1988.
She reported that her childhood sexual abuse and inservice
rape continued to cause her difficulty. In June 1998 she
reported that after being raped during service in Germany
memories of her childhood sexual abuse emerged. She had not
reported the rape because she was informed it might affect
her chance of promotion.
In the Veteran's October 2002 application to reopen her claim
(following the RO denial of service connection for PTSD in
January 1999) she reported that while in Germany during
service she had been raped, identifying the specific man, and
since then her life had been a nightmare. She had once tried
to commit suicide during service, and five times since then.
For years she had used crack and alcohol to suppress her pain
and agony from this trauma. After this event she had tried
to commit suicide and also had received an Article 15 for
dereliction of duty.
On file are two reports dated in December 2002 of VA
psychological testing, each signed by a psychologist and a
psychology intern, which indicate that the Veteran had
difficulty carrying out basic responsibilities and tended to
experience social discomfort and had a chronic level of
impairment with minimal coping skills. Several scores were
consistent with those having high levels of depression and
anxiety and the pattern of elevation suggested chronic PTSD
symptoms. She reported intrusive thoughts and ruminations of
past trauma that supported this. Her sexual identity issues,
which began shortly after her military trauma, were
reflective of the level of disruption the sexual assault
continued to pose in her life. The symptoms she endorsed
were indicative of PTSD and she was plagued by dreams of her
inservice trauma which caused her to be fearful of men,
question her sexuality, begin a long history of alcohol and
drug abuse, and continue having symptoms of depression and
anxiety. She had had several traumas in her life and
continued to have difficulty coping with the aftermath of
these traumas. The diagnoses were PTSD, bipolar disorder,
and polysubstance dependence, in remission.
In an October 2003 letter a VA nurse reported that the
Veteran had been hospitalized in September 2003 for prolonged
PTSD caused by her history of military sexual trauma. She
remained under care with medications and individual
psychotherapy.
A report of an October 2003 VA psychological evaluation noted
that as a life stressor the Veteran reported that her
inservice rape had occurred while under the influence of
alcohol. She had had no sexual experience prior to service.
She had only reported the incident to her sergeant who had
only offered her a drink to numb the pain and it was not
reported to anyone else. She complained of intrusive
recollections and nightmares of the event. She reported that
her symptoms began immediately after the sexual assault. The
diagnoses were PTSD and a bipolar disorder.
In letters in August 2003 and November 2006 the Veteran's
mother stated that she was informed of the alleged rape in a
letter from the Veteran. However, it was not stated when the
letter was received. Also in the letters, there is reference
to behavioral changes in the Veteran when she returned home
from service in Germany. She was angry and confused. She
became suicidal.
The letter in September 2004 from J.K., a service comrade,
indicates that he had known the Veteran prior to service,
since 1968, and when he had seen her in 1982 (while she was
still in the military) he knew that something was wrong
because she was vunerable and unlike her prior self. The
personal problems she experienced in Germany had adversely
affected her life in the past years.
The Veteran's niece stated in November 2006 that after
returning from service in Germany the Veteran's personality
and behavior had changed. She had become quick to anger and
had mood swings. She drank constantly, cried often and was
depressed. She also began using drugs. She was afraid of
everything that she could not control. The Veteran's mother
had informed the niece that the Veteran had been raped in
Germany.
A November 2006 statement from a sister of the Veteran also
attests that after service in Germany the Veteran's
personality and behavior had changed. Upon return she was
angry, suicidal, and very depressed. She drank constantly
and began using drugs.
In a November 2006 letter a VA nurse reported that the
Veteran had had several hospital admissions for PTSD.
In a November 2006 report by a VA psychologist it was
reported that the Veteran had a long history of mental
illness which began after being raped during service. She
had multiple psychiatric diagnoses, including bipolar
disorder, PTSD, and substance dependence. After
psychological testing in 2002 the diagnosis was PTSD related
to her military sexual trauma.
In November 2007 a VA Clinical Nurse Specialist noted that
her initial interview of the Veteran demonstrated clearly
that her inservice rape was a major life event which altered
her ability to interact with others. She continued to have
PTSD symptoms thereafter. It was strongly felt,
professionally, that the Veteran suffered severe trauma from
her (inservice) sexual assault.
In December 2007 another sister of the Veteran stated that
she had been at home in August 1980 when their mother had
received a letter from the Veteran stating that the Veteran
had been raped. After returning home, the Veteran had changed
and was bitter, full of rage, depressed, and had difficulty
establishing any kind of relationship. She developed a
drinking and drug problem and also had nightmares.
Law and Regulations
To establish service connection for PTSD, a veteran must
satisfy three evidentiary requirements. First, a current,
clear medical diagnosis of PTSD. Second, credible evidence of
the occurrence of the stressor. Third, medical evidence of a
causal nexus between the specific claimed in-service stressor
and the current PTSD symptomatology. See 38 C.F.R. §
3.304(f); Cohen v. Brown, 10 Vet. App. 128, 138 (1997).
"If the claimed stressor is not combat[]related, the
appellant's lay testimony regarding in-service stressors is
insufficient to establish the occurrence of the stressor and
must be corroborated by 'credible supporting evidence.'"
Doran v. Brown, 6 Vet. App. 283, 289 (1994). "Credible
supporting evidence" is not limited to service department
records, but can be from any source. See Cohen, 10 Vet.
App. at 147.
If a PTSD claim is based on in-service personal assault,
evidence from sources other than the veteran's service
records may corroborate the veteran's account of the stressor
incident. Examples of such evidence include, but are not
limited to: records from law enforcement authorities, rape
crisis centers, mental health counseling centers, hospitals,
or physicians; pregnancy tests or tests for sexually
transmitted diseases; and statements from family members,
roommates, fellow service members, or clergy. Evidence of
behavior changes following the claimed assault is one type of
relevant evidence that may be found in these sources.
Examples of behavior changes that may constitute credible
evidence of the stressor include, but are not limited to: a
request for a transfer to another military duty assignment;
deterioration in work performance; substance abuse; episodes
of depression, panic attacks, or anxiety without an
identifiable cause; or unexplained economic or social
behavior changes. 38 C.F.R. § 3.304(f)(3).
Recently, 38 C.F.R. § 3.304(f)(3) was amended to relax the
requirement of corroborating evidence of an inservice
stressor in cases in which PTSD is diagnosed during service.
However, because PTSD was not diagnosed during service in
this case, that amendment is not applicable here.
An opinion by a mental health professional based on a
postservice examination of the veteran cannot be used to
establish the occurrence of the stressor. Moreau v. Brown, 9
Vet. App. 389, 396 (1996) (addressing a claim for service
connection for PTSD based on a combat stressor). "[M]ore
than medical nexus evidence is required to fulfill the
requirement for 'credible supporting [stressor] evidence.'"
Id.
However, in Patton v. West, 12 Vet. App. 272, 280 (1999) it
was held that "[t]hese quoted categorical statements were
made in the context of [] PTSD diagnoses other than those
arising from personal assault." Because VA had "provided
for special evidentiary-development procedures, including
interpretation of behavioral changes [] the above categorical
statements in Cohen [] and Moreau [] are not operative."
Patton, at 280.
In addition, the Court noted that in two places the MANUAL
M21-1, Part III, 5.14(c)(3) and (9), appears improperly to
require that the existence of an in-service stressor be shown
by "the preponderance of the evidence." Any such
requirement, however, would be inconsistent with the benefit
of the doubt, or equipoise, doctrine contained in 38 U.S.C.
§ 5107(b). Patton v. West, 12 Vet. App. 272, 280 (1999).
Analysis
It is undisputed from the record that the Veteran has been
unequivocally diagnosed several times with PTSD. It is also
clear that the early diagnoses of PTSD by mental health
professionals were based upon the Veteran's having been
sexually abused as a child by a relative, whereas more recent
diagnoses of PTSD have accepted her account of an in-service
sexual assault as the precipitating cause of her PTSD.
Therefore, the only remaining disputed issue is whether the
Veteran has submitted credible evidence to establish that the
claimed in-service assault actually occurred.
In Forcier v. Nicholson, 19 Vet. App. 414 (2006) the Court
stated that as to behavioral changes of a veteran seeking
service connection for PTSD due to an alleged personal
assault, the Board was not permitted to interpret behavioral
changes or abnormalities to make conclusions or inferences
that were "illogical, improper, and unsupported by the
record" in order to find that there was no corroborative
personal assault stressor evidence. Forcier, at 427 (in which
the Board found that having been AWOL was more consistent
with a history of disciplinary problems and misconduct rather
than a result of sexual assault and that inservice abuse of
alcohol was due to lack of aptitude for service than an
assault).
Initially, the Board notes that there is evidence that the
Veteran has a personality disorder. Developmental defects,
such as personality disorders that are characterized by
developmental defects or pathological trends in the
personality structure manifested by a lifelong pattern of
action or behavior, are not diseases or injuries within the
meaning of applicable legislation in the absence of
superimposed disease or injury, which there is none in this
particular instance. 38 C.F.R. §§ 3.303(c). See also
Johnson v. Principi, 3 Vet. App. 448, 450 (1992); Monroe v.
Brown, 4 Vet. App. 513, 514-515 (1993); Carpenter v. Brown, 8
Vet. App. 240, 245 (1995); VAOPGCPREC 67-90 (July 18, 1990);
VAOPGCPREC 82- 90 (July 18, 1990); VAOPGCPREC 11-1999 (Sept.
2, 1999).
The lay statements from those who know the Veteran
demonstrate that her behavior changed after military service.
These are consistent with two interpretations. The first is
that the postservice behavioral changes were due to
postservice alcohol and drug abuse. The second is that the
behavioral changes are consistent with her trauma of having
been raped during service. Yet another interpretation is
that to the extent that postservice drug abuse was a
manifestation of a behavioral change, it is not inconsistent
with her trauma of having been raped during service.
As to this, a comparison is in order. Specifically, there is
some evidence that the Veteran was significantly affected by
her childhood abuse. On the other hand, the behavioral
changes, reflected by alcohol and drug abuse, after service
are much greater than any changes she had displayed prior to
her active military service.
There are some inconsistencies in the Veteran's history. For
example, she initially reported in July 1998 that she had
been raped during service by three men and there is some
evidence of manipulative behavior. However, these
inconsistencies have been evidenced only when engaging in a
life style involving polysubstance abuse. Otherwise, the
Veteran's narrative history overall has been consistent.
Specifically, she has not denied having had sexual trauma in
her childhood and in relating events surrounding her
inservice assault.
While there is no medical opinion on file which acknowledges
both traumas or attempts to distinguish the impact of one
from the other on the Veteran's life and her development of
PTSD, the evidence as a whole simply does not show that the
inservice sexual trauma did not play a role in her
development of PTSD. In other words, it is reasonable to
interpret the evidence on file as showing that both traumas
led to her developing PTSD.
More to the point, there is no evidence contradicting the
medical opinions on file that the Veteran's inservice sexual
trauma caused her to develop PTSD. This is so even if none
of the evaluations or opinions specifically addressed the
impact of her childhood abuse.
The Board may consider only independent medical evidence to
support its finding and as there is no negative competent
medical evidence against the claim, the preponderance of the
evidence is in favor of the claim for service connection for
PTSD.
ORDER
Entitlement to service connection for PTSD is granted.
____________________________________________
SARAH B. RICHMOND
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs